Decision Date: 08/03/95 Archive Date: 08/04/95 DOCKET NO. 93-19 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUES 1. An increased disability rating for post-traumatic stress disorder, currently evaluated as 50 percent disabling. 2. Entitlement to an earlier effective date for service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Barry F. Bohan INTRODUCTION The appellant served on active duty in the United States Army from September 1967 to July 9, 1969. The appellant was in combat as an infantryman in Vietnam and was awarded the Purple Heart. In October 1969, the appellant filed a claim for service connection for "nervousness". Service connection for anxiety reaction was denied by the Department of Veterans Affairs Regional Office in Denver, Colorado on April 15, 1970. A Statement of the Case was issued on April 20, 1970, although there is no evidence that the appellant filed a Notice of Disagreement as to the issue of service connection for a psychiatric disorder. The appellant did not file an appeal. In April 1991, the appellant contacted the Department of Veterans Affairs Regional Office in San Francisco, California (VARO), requesting that his claim be reopened because he was suffering from post-traumatic stress disorder (PTSD). In a November 1991 rating decision, VARO granted service connection for PTSD, effective from April 15, 1991. A 30 percent disability rating was assigned. The appellant requested an increased disability rating, and also asked for service connection for PTSD effective from his discharge from military service in July 1969. A personal hearing was conducted before a hearing officer at VARO in June 1992. In a December 1992 decision, the hearing officer granted the appellant a 50 percent disability rating for PTSD, effective from February 25, 1991, the date on which the appellant was initially treated for PTSD at a VA medical facility. The hearing officer further found that the April 15, 1970 rating decision which denied the appellant service connection for anxiety reaction was not clearly and unmistakably erroneous. Accordingly, an earlier effective date for service connection for PTSD was denied. In February 1993, VARO issued a Supplemental Statement of the Case, listing the two issues above. The appellant's claims folder was thereupon forwarded to the Board, where it was received and docketed in August 1993. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that he is entitled to a 100 percent disability rating for PTSD, retroactive to the day after he was discharged from military service. Specifically, he contends that the evidence of record in April 1970 was sufficient to establish service connection for an acquired psychiatric disorder, diagnosed as anxiety reaction, which was in fact PTSD. He therefore believes that the April 15, 1970 decision of the VA Regional Office contained clear and unmistakable error. In addition, he contends that he is completely disabled due to PTSD and that a 100 percent disability rating should be assigned. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims folder. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the appellant's claim as to the issue of an increased disability rating for PTSD. A disability rating in excess of 50 percent is therefore denied. Further, it is the decision of the Board than an effective date of July 10, 1970 for service connection for anxiety reaction is granted, based on a finding of clear and unmistakable error in the April 15, 1970 rating board decision. FINDINGS OF FACT 1. The appellant served on active duty in the United States Army from September 1967 to July 9, 1969. 2. Service connection has been granted for PTSD, effective from February 25, 1991. 3. The appellant's service-connected PTSD is currently manifested by nightmares, insomnia, flashbacks, intrusive thoughts about the war in Vietnam, exaggerated startle response, irritability and depression. The appellant works as a temporary legal secretary. 4. In October 1969, the appellant applied for VA benefits, including service connection for an acquired psychiatric disorder. 5. An April 1970 VA rating decision denied the appellant service connection for anxiety reaction. 6. The April 1970 VA rating decision contained clear and unmistakable error. CONCLUSIONS OF LAW 1. The appellant's service-connected PTSD is no more than 50 percent disabling according to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1994). 2. The rating decision of April 1970 contained clear and unmistakable error; the appellant is entitled to service connection for anxiety reaction, effective from the day after his discharge from military service, July 10, 1969, to February 24, 1991. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.105(a), 3.400 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is seeking a 100 percent disability rating for PTSD, retroactive to the day after he was discharged from military service, July 10, 1969. Initially, the Board finds that the appellant has presented a claim which is supported by evidence which leads to the belief that it is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, we find that the appellant's claim has been adequately developed for appellate purposes by VARO and that we may therefore proceed to a disposition of the case. In the interest of clarity, the two issues presented on this appeal will be discussed separately. 1. An increased disability rating for post-traumatic stress disorder, currently evaluated as 50 percent disabling. In evaluating the appellant's request for an increased disability rating for PTSD, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1994). In so doing, it is the Board's responsibility to weigh the evidence before it. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The Board will first review the appellant's relevant medical history. 38 C.F.R. §§ 4.1, 4.130 (1994); Peyton v. Derwinski, 1 Vet.App. 282 (1991). In a report of medical history which he completed in connection with a pre-induction examination in January 1967, the appellant responded affirmatively to the question concerning nervous trouble. He reported visiting a psychiatrist five times, but denied recent problems. He was referred for a psychiatric consultation, which was completed in February 1967. The appellant stated that he did not oppose serving in the military. He reported that his father died in 1963, and that he had a difficult period during his early high school years, when he was "nervous". He denied problems in more recent years, with the exception of occasional mild symptoms of depression. The psychiatrist found no evidence of psychiatric disease and recommended that the appellant be considered eligible for military service. The appellant served in combat in Vietnam as an infantryman. He sustained two injuries in combat: a superficial shell fragment wound in the right forearm when a Claymore mine exploded in July 1968, and a severe laceration wound across the palm of the left hand when he fell into a "spider hole" lined with broken glass in October 1968. He was evacuated to the continental United States and received surgical treatment of the left hand. In a September 1969 rating decision, service connection was granted for a scar of the right forearm and for residuals of laceration of the digital nerve of the left index finger with paresthesis. In a report of medical history which he completed in connection with his separation physical examination in May 1969, the appellant responded "yes" to the question concerning frequent or terrifying nightmares. In October 1969, he filed a claim for service connection for "nervousness". In a January 1970 Statement in Support of Claim (VA Form 21-4138), he reported loss of concentration, nightmares and insomnia, which he related to his second combat wound. A special VA neuropsychiatric examination of the appellant was completed in March 1970. The appellant described nightmares about Vietnam, stated that he did not like to talk about Vietnam, and said "I still get somewhat tense over any sudden noise or excitement...." The examiner found the appellant to be an anxious, preoccupied, introspective individual with considerable repressed hostility. The examiner's diagnosis was anxiety reaction, chronic, moderately severe. The examiner concluded: "It was the opinion of this examiner that this veteran's presently diagnosed neuropsychiatric condition is a residual of his combat fatigue which he developed in Viet Nam...." There is no medical evidence of record until February 1991. Evidently, the appellant experienced some psychiatric difficulty at that time coincident with the Persian Gulf War. He was accepted for outpatient treatment at a VA clinic, and PTSD was diagnosed. A VA psychiatric examination of the appellant was completed in October 1991. The appellant, then age 46, reported that he continued to experience gruesome nightmares about Vietnam 3-4 times weekly for over 20 years. He also had difficulty falling asleep, intrusive thoughts about Vietnam, as well as flashbacks, which were triggered by helicopters or the smell of decomposing materials. He stated that he had difficulty concentrating because his mind was focused on Vietnam. He had few friends, avoided people and was irritable and short- tempered. He had worked as a legal secretary and office manager for law firms in the San Francisco area. He quit or had been fired from several jobs due to his explosive temper. The examiner's diagnosis was PTSD, previously diagnosed as anxiety reaction. The examiner noted that during the March 1970 VA psychiatric examination, the appellant described symptoms and complaints fully consistent with PTSD at that time. Also of record are VA outpatient treatment records for 1991 and 1992. In general, the appellant presented as being angry and depressed. During that period, he worked as a paralegal for a San Francisco law firm. In February 1992, after being informed that individual counseling at the VA clinic would be discontinued, the appellant took an overdose of prescription medication and threatened to cut his throat with a razor. He was hospitalized at St. Mary's Hospital and Medical Center in San Francisco on a legal hold because he was believed to be a danger to himself. He was released two days later. Discharge diagnoses were major depressive reaction with suicide attempt; PTSD; rule out borderline personality disorder. A VA psychological evaluation of the appellant was completed in August 1992. He gave a history which was consistent with that described above. He worked as a legal secretary and clerk. He reported a variety of psychiatric symptoms, among them nightmares, flashbacks, exaggerated startle response, insomnia, difficulty trusting others, explosive temper and various somatic complaints. He presented his concerns dramatically and in general terms, providing few details. A number of psychological tests were administered. Test results were consistent with heavy exposure to combat and PTSD. His responses on the Minnesota Multiphasic Personality Inventory and other tests suggested an exaggeration of symptoms and a tendency to over-report negative symptomatology. His ideation was described as likely to be significantly depressive, negativistic and pessimistic. There was a long-standing pattern of limited concentration stemming from his preoccupation with combat in Vietnam. The examiner's impression included PTSD; secondary depression, with both chronic depression and major depressive episodes; and a mixed personality disorder with borderline, narcissistic, paranoid, passive-aggressive and self-defeating features. A VA psychiatric examination of the appellant was completed in October 1992. The appellant stated that he continued to be despondent and depressed. He stated that he felt alienated from people. He still experienced nightmares, insomnia, flashbacks and intrusive thoughts about the war in Vietnam. He was easily startled by loud noises and avoided movies about Vietnam. He also described himself a moody and irritable. He was self-employed as a legal secretary and had worked 8 out of the past 12 months. He lived by himself. He had some friends but mostly did activities on his own. The examiner's diagnoses were PTSD and dysthymic disorder secondary to PTSD. The examiner went on to state that in his opinion a separate diagnosis of personality disorder was not warranted. Also of record is a November 1992 letter from the appellant's VA physician, who saw him once weekly. The physician stated: "the therapists involved in [the appellant's] care have come to agree that he does manifest a definite partial impairment in his capacity to function at his maximum level of employment. A significant component of this impairment appears to be attributed to his history of traumatic interpersonal relations and stressors, some of which clearly stem from his military combat service in Vietnam." The appellant testified concerning his PTSD at a personal hearing at VARO in June 1992. He stated that he had held "50, 60" jobs since military service [hearing transcript, page 9]. He left most of these jobs because of his explosive temper. His longest period of employment was as a secretary for a law firm, which lasted almost 6 years, because his boss "sort of pampered" him [hearing transcript, page 10]. He could not get along with other secretaries and his insomnia affected his job performance, so he resigned from that position in 1991. Since then, he had worked part time as a temporary legal secretary through agencies. His leisure activities included running, playing the piano and reading. He testified that he kept to himself and had few friends. Analysis A 50 percent disability rating is warranted for PTSD which results in considerable impairment of social and industrial adaptability. A 70 percent disability rating is warranted for PTSD which results in severe social and industrial inadaptability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1994). The words "considerable" and severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. 4.6 (1994). In evaluating the appellant's psychiatric disorder, the Board is cognizant of its responsibilities under the Schedule for Rating Disabilities. 38 C.F.R. § 4.125 et seq. (1994). The Board has carefully considered the medical evidence and the appellant's statements. There can be no question that his PTSD causes him considerable difficulty, both socially and in the workplace. There is, moreover, no doubt that symptoms of his PTSD have reduced his reliability, flexibility and efficiency levels, resulting in considerable industrial impairment. In particular, the Board has noted that symptoms of insomnia and irritability led to his resignation from a full time job with a law firm in 1991. The Board believes, however, that the appellant's PTSD is not productive of severe psychoneurotic symptoms which severely impair his ability to obtain or retain employment. The appellant is able to function as a legal secretary, although obviously some concessions have to be made by his employers. As his treating VA physician stated in November 1992, the appellant has partial impairment in his employment capacity caused, among other reasons, by his experiences in Vietnam. It is the belief of the Board that the currently assigned 50 percent disability rating adequately compensates the appellant for impairment to his earning capacity. 38 C.F.R. §§ 3.321(a), 4.1 (1994). Accordingly, the Board believes that the preponderance of the evidence is against the appellant's claim. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). A disability rating in excess of 50 percent for PTSD is therefore denied. 2. Entitlement to an earlier effective date for service connection for post-traumatic stress disorder. The appellant is also seeking an earlier effective date for service connection for PTSD, based on his contention that clear and unmistakable error existed in the April 15, 1970 rating decision which denied service connection for anxiety reaction. In particular, he contends that the VA rating board ignored evidence contained in his May 1969 separation physical examination and the report of the March 1970 VA psychiatric examination. The unappealed April 1970 rating decision is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1994). Such final decision may, however, be reversed or amended where evidence establishes that clear and unmistakable error existed. 38 C.F.R. § 3.105(a) (1994). The Board wishes to emphasize that the Unites States Court of Veterans Appeals has consistently stressed the rigorous nature of the concept of clear and unmistakable error. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet.App. 370, 372 (1991). "'Clear and unmistakable error' requires that error, otherwise prejudicial,...must appear undebatably." Akins v. Derwinski, 1 Vet.App. 228, 231 (1991). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet.App. 310, 313-4 (1992). "It must always be remembered that CUE is a very specific and rare kind of 'error'." Fugo v. Brown, 6 Vet.App. 40, 43 (1993). In order to determine whether the April 1970 rating decision contained clear and unmistakable error, we review the evidence which was before the rating board "at that time". 38 C.F.R. § 3.104(a) (1994). "A determination that there was 'clear and unmistakable error' must be based on the record that existed at the time of the prior...decision." Russell, supra. In other words, we cannot apply the benefit of hindsight to our evaluation of the rating board's actions in 1970 in determining whether clear and unmistakable error existed. The procedural history of the appellant's claim and the medical evidence which was of record in April 1970 have been reviewed above. In brief, the appellant was wounded twice in combat; he answered affirmatively to the question concerning frequent or terrifying nightmares in the report of medical history he completed in connection with his May 1969 separation physical examination; he filed a claim for service connection for "nervousness" in October 1969, shortly after he left military service; and in January 1970 he reported nightmares, insomnia and difficulty concentrating. Most significantly, the March 1970 psychiatric examination contained a diagnosis of anxiety reaction, which the examiner related to "his combat fatigue which he developed in Viet Nam." In denying the appellant's claim for service connection for an acquired psychiatric disorder, the rating board acknowledged that anxiety disorder had been diagnosed in March 1970. The rating board, however, made no mention of the examiner's conclusion that the appelant's anxiety disorder was directly related to his combat experiences in Vietnam. Rather, the rating board decision found that "[t]his condition was not demonstrated in service or noted on discharge. There is no presumptive period for a psychoneurosis." In so stating, the rating board ignored the appellant's May 1969 report of medical history, while he was still in service; his January 1970 statement; the VA psychiatric examiner's report in March 1970; and the very close temporal relationship between the appellant's combat experiences, particularly the wounds he sustained in October 1968, and the onset of his psychiatric symptomatology in early 1969, particularly his nightmares concerning Vietnam. In addition, the rating board ignored to provisions of 38 C.F.R. § 3.303(d), which provides that service connection may be granted for a disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. That provision existed in essentially unchanged form in April 1970. After having carefully reviewed the evidence which was before the rating board in April 1970, the Board believes that clear and unmistakable error existed in the April 15, 1970 rating decision. It is clear from the evidence which was then at hand that the appellant had a diagnosed psychiatric disorder which began during military service. The rating board ignored evidence favorable to the appellant and also ignored the pertinent VA regulation, 38 C.F.R. § 3.303(d). In general, the effective date of an award based on an original claim for benefits is based on the filing of a claim for such benefits. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.151 (1994); Wells v. Derwinski, 3 Vet.App. 307, 308 (1992). Benefits are generally awarded based on the date of receipt of the claim. However, if, as in this case, a claim for service connection is received within one year after separation from service, service connection is granted from the day following separation from active service. 38 C.F.R. § 3.400 (1994). Accordingly, service connection is granted effective from July 10, 1969. The only remaining matter for the Board's consideration is the disorder for which service connection is to be granted effective July 10, 1969. Although the appellant's present diagnosis is PTSD, and although he seeks an earlier effective date for PTSD, the Board has concluded that service connection should be granted for anxiety disorder from July 10, 1969 to February 25, 1991. PTSD was not diagnosed in March 1970, and indeed did not then exist as a recognized psychiatric diagnosis. The change in diagnosis to PTSD in 1991, although consistent with VA regulations, cannot serve to change the diagnosis of anxiety reaction made in March 1970. 38 C.F.R. §§ 4.13, 4.128 (1994). ORDER An increased disability rating for post-traumatic stress disorder is denied. Service connection for anxiety reaction is granted, effective from July 10, 1969 to February 25, 1991. C.P. RUSSELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -